Being Gay and the Divorce Process in Massachusetts

"Well, I think it's time to think about divorce. So what do I do now?"

The first question is, "Have you considered all options?" Gay men married to women throughout the world are in many different arrangements which meet the needs of both parties and their children. If you're able to talk with your wife, consider all the options. A good professional therapist may help the two of you weigh options.

If your decision is to divorce, your next step is to choose an attorney who is right for you. Start with friends who have had experience with a divorce lawyer. Remember divorce law is a specialty unto itself, with its own courts and judges. You want someone on your side who is familiar with the specific laws surrounding divorce.

Your first phone call to a lawyer's office will give you an indication as to whether you will feel comfortable with the office. Does the person answering the phone "click" with you? If you get a negative feeling on the phone, move on to the next name. A lawyer's staff is a mirror of the lawyer.

At your first meeting, let the lawyer know you're gay and watch the response. If you're uncomfortable, follow your gut. (A real giveaway is when a lawyer avoids the "G" word by using substitutes like "sexual orientation.")

The lawyer you select will ask you to pay a retainer, an amount that you will pay at the outset. Each time your lawyer works on your behalf, you will be billed against your retainer.

The next step is information gathering. You will be asked to provide financial and personal information. Some of this information your attorney will need for his or her own preparation, other information must be obtained to comply with certain court rules. Your quick and complete response to requests for information will save you money and get you through the process more quickly.

Next, you and your wife will have to have some type of temporary arrangement concerning money, the use of property such as the house and, if you have children, a parenting schedule. An arrangement is especially necessary if either you or your wife leave the home.

There are two ways a "temporary" arrangement will be achieved, by agreement with your wife or by order of a judge. Your attorney will try to reach an agreement without court intervention. If your wife makes the unwise and costly mistake of not using a lawyer, you and your attorney will be forced to take the more expensive route of obtaining "Temporary Orders" from a judge. A "Temporary Order" is a mandate from the judge as to what the temporary arrangement will be.

Once there has been a court order based on an agreement or a court decision, you and your wife will be "legally" separated and you will each know what is expected of you in the short term.

Once temporary matters have been addressed, your attorney will turn to making sure he has all of your information about financial and property issues. This includes your records concerning family income, expenses and assets. Your attorney will provide non-confidential information to your wife's attorney and her attorney will in-turn provide your attorney with similar information.

After economic information has been exchanged, settlement discussions begin. Generally, the issues to be resolved include child custody, support or alimony, and the division of property. Your being gay should not, and legally cannot, negatively interfere with these issues. In court, your gayness is not a reasonable counter-attack on issues of support, alimony, property division, or child custody. (See The Fears of Gay Men Divorcing for more information.)

On questions of custody, you and your wife will probably share legal custody. This means the two of you will continue to share mutual responsibility for major decisions relating to your children.

Where the children will live most of the time, except for parenting time with the other parent, is called physical custody. Unless it is not in the best interest of the children, the parent that has been with the children most of the time on a daily basis will usually have an edge. There is no automatic preference for mother or father. Being gay is not a basis for denying custody. In fact, in Massachusetts 70% of men who actively seek sole or shared physical custody prevail.

For families making a combined income of $250,000.00 or less, the Massachusetts Child Support Guidelines set the child support, unless a parent can reasonably argue that the support Guideline is unfair. For families making over this combined income, the setting of child support can be more complicated and is the subject of negotiation.

Alimony is seldom awarded in short-term marriages, and is commonly awarded in long-term marriages. An experienced divorce attorney will know or be able to find out what judges in your area can be expected to do.

In Massachusetts, all property owned by either party is marital property or subject to a fair but not necessarily equal division. Many people mistakenly believe that all property will be divided equally. In Massachusetts, there is no such legal presumption.

After being able to relate to you as a gay man, your lawyer's most important skill should be his ability to negotiate. Since over 90% of divorce cases are settled prior to trial, negotiation skills are important to you and your future. If a settlement is not reached, disputed issues will be submitted to a judge who, after a trial, will render a decision on the issues.

Whether an agreement or a judge resolves your divorce, the end product will affect your personal and financial life well into the future. Therefore, careful consideration should he paid to each decision from the very beginning of the divorce process. With careful decision making, you will resolve important issues of the past and prepare for the future.